LAWRENCE J. O'NEILL, District Judge.
Plaintiff Tina Arteaga ("Ms. Arteaga") asserts claims against defendant Asset Acceptance, LLC ("Asset") pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and the California Rosenthal Act, Cal. Civ. Code § 1788 et seq., based on allegations that Asset called her "constantly and continuously" in an attempt to collect an allegedly unpaid debt, and threatened to "attach" her bank account. Asset moves for summary judgment of Ms. Arteaga's claims, pursuant to Fed. R. Civ. P. 56, arguing that no admissible, competent evidence demonstrates that Asset engaged in conduct to violate federal or state law, and the volume and pattern of calls did not violate FDCPA or the Rosenthal Act as a matter of law. Ms. Arteaga argues that questions of fact exist as to whether Asset's conduct violated the statutes. Having considered the parties' arguments and evidence, and the applicable case law, this Court GRANTS summary judgment in favor of Asset and DIRECTS the clerk of court to close this action.
Ms. Arteaga received a letter from Asset informing her that Asset was "now in possession" of one of her accounts, and was attempting to collect the debt. After receipt of that letter, Ms. Arteaga called Asset in "the early part of 2009" to dispute the debt, as she believes she had settled that debt around twelve years prior. Ms. Arteaga testified that the person she spoke with at Assert was "unprofessional." In addition, Ms. Arteaga testified that female she spoke with threatened her by telling her that Assert "could attach [her] bank accounts with or without" her "sending them the correspondence." According to Ms. Arteaga, Asset began calling her "in the early part of 2009, probably January or February." Ms. Arteaga testified that Asset called her "daily" or "real close to daily." Ms. Arteaga recalls that Asset's debt collection calls ended around the summer of 2009. On the basis of these facts, Ms. Arteaga asserts FDCPA and Rosenthal Act claims against Asset, arguing that Asset's constant and continuous calls and threats violate federal and state law.
According to Asset's records, Asset employee Linda Plimely ("Ms. Plimely") received an incoming telephone call from Ms. Arteaga regarding the debt that Asset was seeking to collect on February 12, 2009. Ms. Arteaga advised Ms. Plimely that she had previously paid the debt, and that she had a copy of the check she used to settle it. Ms. Plimely declares that she did not threaten that Asset would initiate legal action against Ms. Arteaga or tell Ms. Arteaga that Asset would access her bank account.
Asset contends that before Ms. Arteaga called Asset, she expected Asset would threaten to attach her bank account. Asset points out that Ms. Arteaga researched the company on the internet "to see if it was even worth [her] time to call [Asset]" prior to the phone call. Ms. Arteaga testified that during her research, she "read very bad things" about Asset:
Ms. Arteaga found "warnings" that a person should not send information to Asset or Asset "will attach your bank account, they will attach your wages." In her research on Asset, Ms. Arteaga read comments from people who wrote that "Asset had attached their wages. Asset had done horrible things, horrible things to affect them financially. So it was just giant [sic] warning out there as far as don't correspond with Asset at all." Although Ms. Arteaga does not believe everything she reads on the internet, she does believe "a good portion of what [she] read" about Asset.
Asset contends that Ms. Plimely did not threaten Ms. Arteaga, and any perceived threat was a misunderstanding. Asset disputes that Ms. Plimely discussed the possibility of attaching Ms. Arteaga's bank account. Asset argues, however, that even if Ms. Arteaga's statements are taken as true, Ms. Plimely did not threaten her.
Asset argues that the circumstances surrounded the call and the alleged threat demonstrate that Ms. Plimely's statement, if made, was not threatening or harassing. According to Ms. Arteaga's testimony, she called Asset to dispute the debt. The person asked if Ms. Arteaga had a "settled in full letter" to demonstrate that the debt was paid. Ms. Arteaga responded that she
Ms. Arteaga explained that she was concerned about sending Asset a copy of the settlement check because:
Ms. Arteaga further explained that she "had read very bad things, that they were very—they would attach—they would attach to people's bank account and things of that nature, and so I did not want to provide a check to them." According to Ms. Arteaga, she told the Asset representative that she "had concerns about sending [Asset] a check" prior to when the Asset representative made the allegedly threatening statement.
Ms. Arteaga admitted that Asset's representative never threatened to sue her and never told her that Asset would attach her bank account. Rather, according to Ms. Arteaga, Asset's representative explained that Asset could gain access to her account without having the check.
According to Asset's records, after the February 12, 2009 call, Asset marked Ms. Arteaga's account as "disputed" and sent her a letter dated February 17, 2009 requesting that Ms. Arteaga send copies of any documents showing that she had previously paid the debt. Among other things, Asset's letter explained that Ms. Arteaga could send a letter stating that the account had been "paid in full or settled," or a copy of a cancelled check or other form of payment along "with a letter/statement that indicates a satisfaction amount relating to the payment instrument." Ms. Arteaga did not respond to Assert's February 17, 2009 letter.
Asset sent Ms. Arteaga a second letter dated March 18, 2009. The second letter again requested documents showing that Ms. Arteaga made the alleged payment. Asset received no response from Ms. Arteaga. On April 15, 2009, Asset updated it records to reflect that it considered Ms. Arteaga's dispute of the account to be "closed."
Asset then resumed efforts to collect the debt. Between April 16, 2009 and September 29, 2009, Asset's records reflect that Asset telephoned Ms. Arteaga a total of eighteen times. Specifically, Asset called on the following dates: 4/16, 4/28, 5/8, 5/13, 5/14, 5/27, 6/12, 6/16, 6/25, 6/30, 7/6, 7/13, 7/22, 8/4, 8/12, 8/18, 9/2, and 9/29. Asset noted the following outcome of the calls:
Asset contends that the purpose of the calls was to contact Ms. Arteaga to arrange payments to satisfy the debt, and that no calls were placed with the intent to annoy, abuse or harass Ms. Arteaga.
Asset disputes Ms. Arteaga's recollection that Asset called "daily." Ms. Arteaga claimed she knew Asset called her because "[t]here were messages on the answering machine, and we have caller ID." But Ms. Arteaga did not know how many times Asset called her. She also admitted that she was getting calls "every few days" from a different collection agency in 2009. Ms. Arteaga was unable to say how many messages Asset left for her. Ms. Arteaga admitted that she "would just delete through them" and that she "didn't listen to the full message." Ms. Arteaga could not remember how many times her caller ID reflected that Asset had called her. She explained that the caller ID displayed "just the 800 numbers," but conceded that she does not remember what the phone number was that she believed to be connected to Asset. She also admitted that more than one "800 number" displayed on her caller ID in 2009. Ms. Arteaga had no written records of the numbers displayed on her caller ID in 2009.
Asset submits that any alleged threat was a bona fide error. Asset maintains policies and procedures designed to avoid making false, deceptive, or misleading representations in connection with the collection of a debt. Asset's employees, including Ms. Plimely, participate in a comprehensive training program, and learning about federal and state collection laws. Asset's collectors are trained that it is unlawful to threaten to sue a consumer when Asset does not intend to do so, and unlawful to threaten to attach a consumer's assets when Asset does not have a judgment against the consumer. Asset's employees are tested annually on their knowledge of FDCPA and other applicable laws, and are advised that deviation from the requirements of FDCPA or state collection laws can be grounds for disciplinary action, including termination.
Ms. Arteaga initiated this action on October 21, 2009. Asset moved for summary adjudication on July 9, 2010. Ms. Arteaga opposed the pending motion on August 10, 2010. Asset replied on August 16, 2010. This Court found this motion suitable for decision without a hearing, vacated the August 24, 2010 hearing pursuant to Local Rule 230(g), and issues the following order.
On summary judgment, a court must decide whether there is a "genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing of sufficient evidence to establish an essential element of the nonmoving party's
To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor, but "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); T.W. Elec. Serv., 809 F.2d at 631. The nonmoving party must "go beyond the pleadings and by her own affidavits, or by depositions, answer to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Fed. R. Civ. P. 56(e) requires a party opposing summary judgment to "set out specific facts showing that there is a genuine issue for trial." "In the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion will be granted." Nilsson, Robbins, et al. v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir.1988).
With these standards in mind, the Court turns to defendants' arguments.
15 U.S.C. § 1692d of the FDCPA ("Section 1692d") prohibits debt collectors from engaging in "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any debt." 15 U.S.C. § 1692d. Section 1692d includes a non-exhaustive list of conduct that constitutes harassment, oppression or abuse, including "[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C. § 1692d(5). Ms. Arteaga contends that by calling her "daily" or "close to daily," Asset violated Section 1692d and Section 1692d(5).
"[C]laims under § 1692d should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse." Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir.1985); Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993). This standard is similar to that of the "least sophisticated debtor," which the Ninth Circuit applies to other sections of the FDCPA. See, Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir.2006). This objective standard "ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd ... the ignorant, the unthinking and the credulous." Clomon, 988 F.2d at 1318-19.
Asset argues that Ms. Arteaga's claims fails as a matter of law, because she has
"Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls." Joseph v. J.J. Mac Intyre Cos., LLC, 238 F.Supp.2d 1158, 1168 (N.D.Cal.2002). Court opinions differ, however, as to the amount or pattern of calls sufficient to raise a triable issue of fact regarding the intent to annoy, harass, or oppress. See Krapf v. Nationwide Credit Inc., 2010 WL 2025323, *3-4 (C.D.Cal.2010). Although there is no bright-line rule, certain conduct generally is found to either constitute harassment, or raise an issue of fact as to whether the conduct constitutes harassment, while other conduct fails to establish harassment as a matter of law. As explained more fully below, this Court finds that even if Ms. Arteaga's testimony is believed to be true, she has failed to raise a genuine issue of material fact on her Section 1692d or Section 1692d(5) claims.
A debt collector may harass a debtor by immediately recalling a debtor after a debtor has hung up the telephone. In Bingham v. Collection Bureau, Inc., 505 F.Supp. 864 (Dist.N.D.1981), for example, the court found that a collector's immediate recalling of the debtor after the debtor hung up on the collector constituted harassment. Likewise, in Kuhn v. Account Control Technology, Inc. 865 F.Supp. 1443, 1453 (Dist.Nev.1994), the court found that the debt collector harassed the debtor in violation of Section 1692d(5) when, after the debtor hung up on debt collector's representative, the debt collector recalled the debtor's place of employment two additional times within a five minute period of time. See also, Fausto v. Credigy Services Corp., 598 F.Supp.2d 1049 (N.D.Cal.2009) (evidence that debt collection agency's employees had made more than 90 calls to consumers' home, that content of calls had been harassing in nature, employees had failed to identify themselves when calling, had allowed phone to ring repeatedly, and called back immediately after consumers hung up phone raised fact issue as to whether employees' conduct was offensive, precluding summary judgment).
Similarly, a debt collector may harass a debtor by continuing to call the debtor after the debtor has requested that the debt collector cease and desist communication.
The practice of calling a debtor outside of his or her home—by calling the debtor's workplace or the homes of a debtor's family and friends—or calling at inconvenient hours, can also constitute harassment. See, Gilroy v. Ameriquest Mortg. Co., 632 F.Supp.2d 132 (Dist.N.H.2009) (intent to harass may be inferred by evidence that a debt collector continued to call the debtor after the debtor had asked not to be called and had repeatedly refused to pay the alleged debt, or during a time of day which the debtor had informed the debt collector was inconvenient.); Sanchez v. Client Services, Inc., 520 F.Supp.2d 1149 (N.D.Cal.2007) (actions of debt collectors seeking to collect consumer's debt, including making 54 telephone calls to consumer at work and leaving 24 messages on work answering machine, allegedly in an attempt to obtain consumer's location information, were intended to annoy, abuse and harass consumer, in violation of FDCPA and Rosenthal Act); Kerwin v. Remittance Assistance Corp., 559 F.Supp.2d 1117, 1124 (Dist.Nev.2008) ("Intent to annoy, abuse, or harass may be inferred from the frequency of calls, the substance of the calls, or the place to which phone calls are made.").
Calling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the FDCPA. See, e.g., Akalwadi v. Risk Management Alternatives, Inc., 336 F.Supp.2d 492 (Dist.Md.2004) (genuine issue of material fact regarding whether debt collector, in telephoning consumer on daily basis and in one occasion making three phone calls in space of just five hours, and had resorted to abusive and harassing phone calls in attempt to collect debt, precluded entry of summary judgment on consumer's resulting claims under the FDCPA); Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1453 (Dist. Nev.1994) (six telephone calls in 24 minutes constituted harassment in violation of section 1692d(5)); United States v. Central Adjustment Bureau, Inc., 667 F.Supp. 370, 376 (N.D.Tex.1986), aff'd, 823 F.2d 880 (5th Cir.1987) (finding harassment where debt collector made as many as four or five telephone calls to the same debtor in one day); Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 506 (Dist. Md.2004) (telephone calls made on a daily basis and three phone calls made within five hours raises question of fact for jury).
By contrast, some conduct does not constitute harassment as a matter of law. See e.g., Gallagher v. Gurstel, Staloch & Chargo, P.A., 645 F.Supp.2d 795 (Dist.Minn. 2009) (single laugh by employee of debt collector during phone call with debtor to discuss holds placed on funds in debtor's bank account was not harassing, oppressive, or abusive conduct violative of FDCPA; laugh was during a single phone call involving only employee and debtor that was initiated by debtor, and there were no profanities, name calling, insults, unwanted calls or disclosure of private information to third parties caused by debt collector); Baker v. Allstate Financial Services, Inc., 554 F.Supp.2d 945 (Dist. Minn.2008) (debt collector's statement in voicemail that consumer's "case" was "urgent" and "time sensitive" was not sufficiently
Under the facts of this case, the Court finds that Asset's conduct did not rise to the level of harassment under Section 1692d, and fails to raise a triable issue of fact as to whether the phone calls were initiated with the intent to harass in violation of Section 1692d(5). None of the egregious conduct identified above is present in this case. Ms. Arteaga presents no evidence that Asset called her immediately after she hung up, called multiple times in a single day, called her place of employment, family, or friends, called at odd hours, or called after she requested Asset to cease calling. Indeed, Ms. Arteaga does not claim that she requested Asset to cease calling her, and only recalls the substance of one conversation in which Ms. Arteaga initiated the communication with Asset. Ms. Arteaga fails to cite a single case in which "daily" or "nearly daily" phone calls alone raise an issue of fact as to these claims. Rather, the case law supports Asset's position that, even if Ms. Arteaga's allegations are believed as true, and considered under the "least sophisticated debtor" standard, the conduct does not constitute harassment as a matter of law. See, e.g., Udell v. Kansas Counselors, Inc., 313 F.Supp.2d 1135 (Dist.Kan.2004) (fact that debt collector placed four automated telephone calls to consumers over course of seven days without leaving message did not, as matter of law, constitute harassment under FDCPA). Accordingly, this Court grants summary judgment in favor of Asset on Ms. Arteaga's Section 1962d and 1692d(5) claims.
The above analysis applies equally to Ms. Arteaga's Rosenthal Act claims. Under the Rosenthal Act, it is unlawful to cause "a telephone to ring repeatedly or continuously to annoy the person called." Cal. Civ. Code 1788.11(d), or "[c]ommunicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and constitute an harassment to the debtor under the circumstances." Id. at 1788.11(e). For the reasons explained above, this Court finds that "daily" calls alleged by Ms. Arteaga fails to raise a genuine issue of material fact as to whether Asset's communications were so frequent as to be unreasonable or to constitute harassment under the circumstances regarding Ms. Arteaga's Rosenthal Act claims. See Joseph, 238 F.Supp.2d 1158 (finding that actionable harassment or annoyance under Rosenthal Act may be based on either the volume or pattern of calls, similar to FDCPA analysis).
The FDCPA further provides that a "debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of a debt." 15 U.S.C. § 1692e. Like Section 1692d, Section 1692e proscribes specific
Asset argues that Ms. Arteaga's Section 1692e claims fails as a matter of law for three reasons. First, Asset disputes that its representative made the statement, and contends that no admissible evidence, beyond Ms. Arteaga's unsupported and conclusory testimony, supports her assertions. Second, Asset argues that even if Ms. Plimely made the statement to Ms. Arteaga, the statement was not a threat. Asset points out that Ms. Arteaga admitted that she was told that Asset could attach her bank accounts, but was never told that Asset would attach her bank accounts. Third, Asset contends that the disputed statement was not improper, because Section 1692e does not prohibit a debt collector from explaining its legal options to a debtor.
The Court considers Section 1692e claims under the "least sophisticated consumer standard." Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222 (9th Cir.1988). The "least sophisticated consumer" standard serves dual purposes. First, it protects consumers, even those who are naive and trusting, against deceptive debt collection practices. Second, it "protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices." Clomon, 988 F.2d 1314. The standard is objective, and the plaintiff's actual perception is immaterial to the Court's analysis of whether the statement was misleading to the least sophisticated consumer. Gonzales v. Arrow Financial Servs., LLC., 489 F.Supp.2d 1140 (S.D.Cal.2007).
"[M]erely advising the debtor of the agency's options with which to pursue the debt is the sort of truism that is legally insufficient to violate 1692e." Sparks v. Phillips & Cohen Assoc., Ltd., 641 F.Supp.2d 1234, 1249 (S.D.Ala.2008). In Sparks, the plaintiff alleged that the debt collector stated that it could force her to sell her deceased mother's house in probate to pay her mother's debts. The court found that such a statement was neither a threat or a false statement, but rather an "innocuous statement" of the debt collector's "legal rights." Id. Accordingly, the court granted summary judgment in favor of the debt collector on the plaintiffs' Section 1692e(4) and (5) claims. Similarly, in Shuler v. Ingram & Assoc., 710 F.Supp.2d 1213 (N.D.Ala.2010), the court found that a debt collectors statement that it "may place a lien on plaintiffs' property, garnish [plaintiff's] wages, that [the debt collector] prosecutes debts like his, and always wins" did not constitute threats or actions that the debt collector could not or did not intent to take. By these standards, Asset's alleged statement that it could attach Ms. Arteaga's bank account even if Ms. Arteaga did not send Asset her check would be viewed as "informational" by the least sophisticated consumer, and not a threat to do something that Asset could not legally do.
In the alternative, even if Ms. Arteaga successfully raises a question of fact, the bona fide error affirmative defense bars liability on her Sections 1692e(4) and (5) claims, and Rosenthal Act claims. Section 1692k(c) provides:
15 U.S.C. § 1692k(c). Debt collectors may assert the "bona fide error" defense as an affirmative defense to avoid liability. "The debt collector must only show that the violation was unintentional, not that the communication itself was unintentional." Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir.1998). Because it is an affirmative defense, Asset bears the burden of proof at summary judgment stage. Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1177 (9th Cir.2006). To establish its affirmative defense, Asset must demonstrate that it maintains policies and procedures designed to avoid making false deceptive or misleading representations in connection wit the collection of a debt.
Asset submits the declarations of Ms. Plimely and Ken Proctor, the litigation coordinator and former Vice President of Compliance for Asset, to support its bona error defense. According to Mr. Proctor, Asset maintains policies and procedures designed to avoid making any false, deceptive or misleading representation in connection with collection of a debt. Asset's employees, including Ms. Plimely, participate in a comprehensive training program for new collectors and continuing education/training
Ms. Arteaga fails to dispute Asset's evidence of its policies and procedures. In opposition, Ms. Arteaga submits that she "lacks sufficient knowledge" of Asset's policies and procedures. In addition, Ms. Arteaga claims that Asset failed to submit any evidence to support its position that it maintains adequate policies and procedures, notwithstanding the fact that Asset submitted the two declarations described above. Ms. Arteaga provides no evidence or argument to oppose meaningfully Asset's bona fide error affirmative defense.
The uncontested evidence establishes that Asset had policies and procedures in place that were reasonably adapted to avoid false representations made to consumers, or implications that Asset would attach a consumer's bank account if a debt was not paid without the legal right to do so. Ms. Plimely declares that Asset trained her that it was against the law to threaten to garnish wages or attach assets if Asset did not have a judgment against the consumer. Thus, if the factfinder were to believe Ms. Arteaga that Ms. Plimely stated that Asset could attach her bank account, Ms. Plimely would have been acting contrary to policies, procedures and training that Asset implemented to prevent debtor harassment. According to the evidence, Ms. Plimely was given detailed training and was tested on the requirements of the FDCPA. The training included a blanket prohibition on making false or misleading statements, or using any threatening, harassing or abusive language. These procedures were reasonable methods for preventing collection personnel from making inappropriate statements during collection calls. Accordingly, Asset has established that a violation of Section 1692e(4) or (5), or the Rosenthal Act, was the result of a bona fide error, and is entitled to summary judgment in its favor.
For the foregoing reasons, this Court GRANTS summary judgment in favor of
IT IS SO ORDERED.
Plaintiff Tina Arteaga ("Ms. Arteaga") moves this Court to reconsider its August 23, 2010 Order Granting Summary Judgment ("MSJ Order") in favor of defendant Asset Acceptance, LLC ("Asset"). This Court ruled in favor of Asset on Ms. Arteaga's Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and the California Rosenthal Act, Cal. Civ. Code § 1788 et seq., claims. In addition, this Court granted summary judgment in favor of Asset on its bona fide error affirmative defense. Ms. Arteaga argues that this Court committed clear error in its ruling on the FDCPA claims, because it accepted as true Asset's allegations, made a distinction unsupported by law, and erroneously decided a factual issue. In addition, Ms. Arteaga argues that Asset failed to meet its burden to establish the bona fide error affirmative defendants. Ms. Arteaga's FDCPA arguments misconstrue this Court's analysis of the facts and law. In addition, without explanation, Ms. Arteaga's motion impermissibly re-raises arguments addressed by this Court, raises new arguments, and relies on law not cited in her opposition to the summary judgment motion. Accordingly, Ms. Arteaga's motion for reconsideration is DENIED.
This Court set forth the applicable facts in the MSJ Order as follows:
Ms. Arteaga received a letter from Asset informing her that Asset was "now in possession" of one of her accounts, and was attempting to collect the debt. After receipt of that letter, Ms. Arteaga called Asset in "the early part of 2009" to dispute the debt, as she believes she had settled that debt around twelve years prior. Ms. Arteaga testified that the person she spoke with at Assert was "unprofessional." In addition, Ms. Arteaga testified that female she spoke with threatened her by telling her that Assert "could attach [her] bank accounts with or without" her "sending them the correspondence." According to Ms. Arteaga, Asset began calling her "in the early part of 2009, probably January or February." Ms. Arteaga testified that Asset called her "daily" or "real close to daily." Ms. Arteaga recalls that Asset's debt collection calls ended around the summer of 2009. On the basis of these facts, Ms. Arteaga asserts FDCPA and Rosenthal Act claims against Asset, arguing that Asset's constant and continuous calls and threats violate federal and state law.
According to Asset's records, Asset employee Linda Plimely ("Ms. Plimely") received an incoming telephone call from Ms. Arteaga regarding the debt that Asset was seeking to collect on February 12, 2009. Ms. Arteaga advised Ms. Plimely that she had previously paid the debt, and that she had a copy of the check she used to settle it. Ms. Plimely declares that she did not threaten that Asset would initiate legal action against Ms. Arteaga or tell Ms. Arteaga that Asset would access her bank account.
Asset contends that before Ms. Arteaga called Asset, she expected Asset would threaten to attach her bank account. Asset points out that Ms. Arteaga researched the company on the internet "to see if it was even worth [her] time to call [Asset]" prior to the phone call. Ms. Arteaga testified
Ms. Arteaga found "warnings" that a person should not send information to Asset or Asset "will attach your bank account, they will attach your wages." In her research on Asset, Ms. Arteaga read comments from people who wrote that "Asset had attached their wages. Asset had done horrible things, horrible things to affect them financially. So it was just giant [sic] warning out there as far as don't correspond with Asset at all." Although Ms. Arteaga does not believe everything she reads on the internet, she does believe "a good portion of what [she] read" about Asset.
Asset contends that Ms. Plimely did not threaten Ms. Arteaga, and any perceived threat was a misunderstanding. Asset disputes that Ms. Plimely discussed the possibility of attaching Ms. Arteaga's bank account. Asset argues, however, that even if Ms. Arteaga's statements are taken as true, Ms. Plimely did not threaten her.
Asset argues that the circumstances surrounded the call and the alleged threat demonstrate that Ms. Plimely's statement, if made, was not threatening or harassing. According to Ms. Arteaga's testimony, she called Asset to dispute the debt. The person asked if Ms. Arteaga had a "settled in full letter" to demonstrate that the debt was paid. Ms. Arteaga responded that she did not have the letter, because she had settled the debt. She further explained that she did not have a "settled in full" letter, but did have "copies of the check front and back" that she used to settle the account. The person then told her that "without a settled in full letter, [Ms. Arteaga] was still going to be responsible for the debt and to send [Asset] all the information [she] had." Ms. Arteaga responded:
Ms. Arteaga explained that she was concerned about sending Asset a copy of the settlement check because:
Ms. Arteaga further explained that she "had read very bad things, that they were very—they would attach—they would attach to people's bank account and things of that nature, and so I did not want to provide a check to them." According to Ms. Arteaga, she told the Asset representative that she "had concerns about sending [Asset] a check" prior to when the Asset representative made the allegedly threatening statement.
Ms. Arteaga admitted that Asset's representative never threatened to sue her and never told her that Asset would attach her bank account. Rather, according to Ms. Arteaga, Asset's representative explained that Asset could gain access to her account without having the check.
Asset sent Ms. Arteaga a second letter dated March 18, 2009. The second letter again requested documents showing that Ms. Arteaga made the alleged payment. Asset received no response from Ms. Arteaga. On April 15, 2009, Asset updated it records to reflect that it considered Ms. Arteaga's dispute of the account to be "closed."
Asset then resumed efforts to collect the debt. Between April 16, 2009 and September 29, 2009, Asset's records reflect that Asset telephoned Ms. Arteaga a total of eighteen times. Specifically, Asset called on the following dates: 4/16, 4/28, 5/8, 5/13, 5/14, 5/27, 6/12, 6/16, 6/25, 6/30, 7/6, 7/13, 7/22, 8/4, 8/12, 8/18, 9/2, and 9/29. Asset noted the following outcome of the calls:
Asset contends that the purpose of the calls was to contact Ms. Arteaga to arrange payments to satisfy the debt, and that no calls were placed with the intent to annoy, abuse or harass Ms. Arteaga.
Asset disputes Ms. Arteaga's recollection that Asset called "daily." Ms. Arteaga claimed she knew Asset called her because "[t]here were messages on the answering machine, and we have caller ID." But Ms. Arteaga did not know how many times Asset called her. She also admitted that she was getting calls "every few days" from a different collection agency in 2009. Ms. Arteaga was unable to say how many messages Asset left for her. Ms. Arteaga admitted that she "would just delete through them" and that she "didn't listen to the full message." Ms. Arteaga could not remember how many times her caller ID reflected that Asset had called her. She explained that the caller ID displayed "just the 800 numbers," but conceded that she does not remember what the phone number was that she believed to be connected to Asset. She also admitted that more than one "800 number" displayed on her caller ID in 2009. Ms. Arteaga had no written records of the numbers displayed on her caller ID in 2009.
Asset submits that any alleged threat was a bona fide error. Asset maintains policies and procedures designed to avoid making false, deceptive, or misleading representations in connection with the collection of a debt. Asset's employees, including Ms. Plimely, participate in a comprehensive training program, and learning
Ms. Arteaga initiated this action on October 21, 2009. Asset moved for summary adjudication on July 9, 2010. The Court issued the MSJ Order after full briefing on August 23, 2010. Ms. Arteaga moved for reconsideration of the MSJ Order on September 2, 2010 and an amended motion on September 10, 2010. This Court found this motion suitable for decision without a hearing, vacated the November 8, 2010 hearing pursuant to Local Rule 230(g), and issues the following order.
The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir.1992); see also, Fed. R. Civ. P. 59(e). Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir.1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). A motion for reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000).
To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Id.; see also, Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir.1987). "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999).
Motions for reconsideration are not the place for parties to make new arguments not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir.1988). Nor is reconsideration to be used to ask the court to rethink what it has already thought. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.Cal.2001).
With these standards in mind, the Court turns to Ms. Arteaga's arguments.
Ms. Arteaga argues that this Court erred in granting summary judgment against her on her 15 U.S.C. §1692d of the FDCPA ("Section 1692d") claims, because the Court "accepted that Defendant called Plaintiff eighteen times." Indeed, Ms. Arteaga contends multiple times in her memorandum that this Court accepted as true the defendants' version of the facts, even though Ms. Arteaga disputed those
Ms. Arteaga's assertion that this Court accepted defendants' facts as true is false and unsupported by a reading of this Court's order. Nowhere in its MSJ Order did this Court accept as true defendants' facts. Rather, on her Section 1692d claims, the Court reasoned as follows (emphasis added):
The Court based its decision, not on whether Asset called her 18 times, but on whether "daily" or "near daily phone calls" during the relevant time period raised a question of fact on the issue of harassment. This Court pointed out that no authority found that "daily" or "near daily" calls raised an issue of fact for a jury to determine whether the conduct violated Section 1692d. The Court plainly stated that "even if Ms. Arteaga's allegations are believed as true," the conduct did not constitute harassment as a matter of law. Accordingly, this Court denies reconsideration on these grounds.
Next, Ms. Arteaga argues that this Court erred because whether the conduct constitutes harassment was a factual issue for the jury to decide, not an issue for the Court to decide. To support this assertion, Ms. Arteaga string cites multiple cases, most of which she cited in opposition to the summary judgment motion. Ms. Arteaga re-asserts her original argument that because the facts are contested, there is a question for the jury.
As this court set forth above, reconsideration is not to be used to ask the court to rethink what it has already thought. Rezzonico, 32 F.Supp.2d at 1116. "A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." Westlands Water Dist., 134 F.Supp.2d at 1131. In its MSJ Order, this Court considered the cases cited by Ms. Arteaga, both in her opposition and in the instant motion. Indeed, the MSJ Order includes a four-page assessment of the state of the law on Section 1692d claims, and cited over twenty published opinions on the matter. Ms. Arteaga ignores this Court's lengthy analysis in this motion, and her arguments on reconsideration simply recapitulate her original argument. In addition, and most importantly, Ms. Arteaga continues to fail to cite a single case in which "daily" or "nearly daily" phone calls for any period of time raised a question of fact on harassment.
Ms. Arteaga argues that this Court committed clear error because it failed to construe the evidence liberally. In its order, this Court noted that the FDCPA is to be construed liberally; however, liberal construction of a statute does not mean that Ms. Arteaga withstands summary adjudication of her claim without having evidence to support it. Courts across the country have found that:
Even liberally construed, Ms. Arteaga continues to fail to cite a single case in which "daily" or "nearly daily" phone calls alone raise an issue of fact as to these claims. In fact, the cases cited in which conduct was found not to constitute harassment as a matter of law involved facts comparatively more egregious that the instant action. The case law supports this Court's decision that, even if Ms. Arteaga's allegations are believed as true, and considered under the "least sophisticated debtor" standard, the conduct does not constitute harassment as a matter of law. Accordingly, Ms. Arteaga's motion to reconsider this Court's grant of summary adjudication against her on her Section 1692d and 1692d(5) claims is denied.
The FDCPA further provides that a "debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of a debt." 15 U.S.C. § 1692e. Ms. Arteaga contended that by "threatening to attach her bank account," Asset violated two Section 1692e subsections. Ms. Arteaga argued that Asset's statement violated Section 1692e(4), which prohibits a "representation or implication that nonpayment of any debt will result in the ... attachment... of any property ... unless such action is lawful and the debt collector or creditor intends to take such action." Ms. Arteaga further contended that Asset's statement that it could attach her bank
Ms. Arteaga argues that this Court's "finding that Defendant did not violate [the statutes] because Defendant did not indicate that it `would' take action to attach her bank account and instead indicated only that it `could' take such action is in error and does not comport with Circuit Court case law finding such distinction to be immaterial." Ms. Arteaga's argument is unavailing for three reasons.
First, the Court's decision did not rely solely on the "would/could" distinction. The Court found that the "circumstances surrounding the statement make clear that the least sophisticated consumer would not believe the statement to be a threat to take action without authority or intent to do so." The Court considered many circumstances, including:
On the basis of this reasoning, of which the would/could distinction was a small part, the Court granted summary judgment in favor of Asset and against Ms. Arteaga.
Put another way, while Ms. Arteaga's argument focuses the distinction, the Court's decision did not. The significant factors considered were: (1) the consumer had initiated the phone call, (2) the consumer raised the subject regarding the attachment of the bank account, (3) the consumer asked a question about Asset's abilities to attach her bank account, (4) the allegedly threatening statement was a response to the customer's direct question on the subject, and (5) the debt collector did not make any statements that action would be taken. Ms. Arteaga makes no effort to address the other factors upon which the Court based its decision. Ms. Arteaga makes no attempt to support a position that based on these circumstances and the applicable case law, the least reasonable consumer would understand Ms. Plimely's response was informational and not a threat. In addition, Ms. Arteaga continues
Second, the Court noted in its order that case law does support the distinction. The Court found that Asset's alleged statement that it could attach Ms. Arteaga's bank account even if Ms. Arteaga did not send Asset her check would be viewed as "informational" by the least sophisticated consumer, and not a threat to do something that Asset could not legally do. The Court based on its conclusion on the following case law and analysis:
Ms. Arteaga fails to address this case law.
Third, although Ms. Arteaga argues that "Circuit Court" case law finds the distinction to be immaterial, Ms. Arteaga fails to cite a comparable case in which the distinction was immaterial. Ms. Arteaga's argument relies on unsupported statements of the law related to the Federal Trade Commission Act ("FTC") Act, common law deception, an FTC Commentary on Section 1692e(5), and distinguishable case law. Even if the law cited were applicable or apposite, motions for reconsideration are not the place for parties to make new arguments not raised in their original briefs. Northwest Acceptance Corp., 841 F.2d at 925-6. Accordingly, Ms. Arteaga's motion for reconsideration is denied on these claims.
The Court ruled "in the alternative, even if Ms. Arteaga successfully raises a question of fact, the bona fide error affirmative defense bars liability on her Sections 1692e(4) and (5) claims, and Rosenthal Act claims." Section 1692k(c) provides:
15 U.S.C. § 1692k(c). Debt collectors may assert the "bona fide error" defense as an affirmative defense to avoid liability. "The debt collector must only show that the violation was unintentional, not that the communication itself was unintentional." Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir.1998). Because it is an affirmative defense, Asset bears the burden of proof at summary judgment stage. Clark v. Capital Credit & Collection
In this motion for reconsideration, Ms. Arteaga devotes four pages to her bone fide error argument. This argument is twice as long as the argument in her opposition, raises arguments for the first time, and relies on cases not originally cited or discussed in her opposition to the summary judgment motion. Of her opposition, the Court noted:
Ms. Arteaga fails to explain why she failed to cite the law upon she now relies in her opposition, or why she failed to raise the legal issues now raised. As set forth above, reconsideration is not the place to raise new arguments or law that Ms. Arteaga failed to raise in her opposition. Accordingly, reconsideration is inappropriate.
Moreover, reconsideration of the Court's decision on this claim would not affect the judgment of this Court. The bona fide error affirmative defense was considered in the alternative. First and foremost, the Court found that Ms. Arteaga failed to raise a material issue of fact on her claims, and granted judgment in favor of Asset as a matter of law. The Court reaffirms that decision in this order.
For the foregoing reasons, this Court DENIES Ms. Arteaga's motion for reconsideration.
IT IS SO ORDERED.
